What follows is the entire brief (points 1-22) filed May 22, 1996 in Philadelphia on behalf of Mumia, re: New Statements by Witness Veronica Jones.
"Exhibit 1: VERIFIED STATEMENT OF VERONICA JONES" has already been posted, along with points 1 and 2 of this brief.
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IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT _____________________________________
COMMONWEALTH OF PENNSYLVANIA,
Appellee,
v.
MUMIA ABU-JAMAL a.k.a. Wesley Cook,
Appellant.
______________________________________
No. 119 Cap. App. Dkt. 1995
APPELLANT MUMIA ABU-JAMAL'S APPLICATION FOR RELIEF IN THE FORM OF A REMAND TO TAKE ADDITIONAL TESTIMONY
Appellant Mumia Abu-Jamal ("Jamal") respectfully applies for relief in the form of a remand to the Court of Common Pleas for the purpose of taking the additional testimony of Veronica Jones, a newly-available witness, in support of his Amended Petition for Post-Conviction Relief. Jones will provide powerful new evidence that days before she took the stand as a defense eyewitness at the 1982 trial, Philadelphia police detectives had visited her in jail, where she faced major felony armed robbery charges, and threatened and coerced her to change her testimony. Bowing to this police intimidation, Jones changed her testimony at trial by repudiating her true eyewitness statement that she saw two men flee the scene immediately after the shooting, thus seriously undermining Jamal's defense.
In further support of this Application for Relief, Jamal submits the attached verified statement of Veronica Jones (Exhibit 1, "Jones Ver.") and states as follows:
INTRODUCTION
Veronica Jones was called as a defense witness at Jamal's 1982 trial but surprised the defense by repudiating her initial eyewitness account that she saw two men run from the crime scene immediately after shots were fired. (Tr. 6/29/82: 99-100.) As explained in more detail below, Jones would now testify that she changed her testimony in ways harmful to the defense because she was coerced into doing so by police. At the time of Jamal's trial, Jones was under arrest on serious felony charges (including robbery, assault and weapons charges), facing a possible prison term of 10 to 15 years. Shortly before she testified as a defense witness, Philadelphia police detectives visited her in jail and promised she would be treated leniently on her pending charges if she falsely identified Jamal as the shooter. The detectives impressed on Jones that she "would face years in prison" if she did anything to help Jamal's defense.
(Jones Ver. 2.) Because of this police intimidation, Jones gave false testimony at Jamal's trial and retracted her true eyewitness account that two men fled the scene immediately after the shooting.
Jones' newly available testimony is critical for several reasons. Her true eyewitness account of two men fleeing provides powerful evidence of the defense claim that the shooter fled the scene. As explained below, the prosecution case was premised on the claim that only two people -- Jamal and his brother William Cook -- were at the scene with P.O. Faulkner when Faulkner was shot. Contrary to the prosecution claim, several witnesses told police that one or more men had been at the scene and fled. Yet only one witness, Dessie Hightower, testified to that fact before the jury. At the 1995 PCRA hearing another witness (cabdriver Robert Chobert), who at trial had retracted his claim that he saw the shooter run away, revealed that he had received a prosecution promise to help him reinstate his suspended drivers' license. William Singletary, indisputably a witness at the scene, explained that police suppressed his statement that the shooter fled and forced him to sign a false witness statement under intense police pressure and intimidation. Dessie Hightower described how police subjected him to a grueling five hour interrogation and a polygraph test because he insisted he saw someone flee the scene. And Deborah Kordansky, who also saw someone running immediately after the shooting, could not be called as a defense witness at trial because the Commonwealth had not provided the defense her address before trial. Further, Jones' testimony supports the defense claim that similar police misconduct was used to coerce a key prosecution witness, the prostitute Cynthia White, to falsely identify Jamal as the shooter. The police intimidation of Jones thus corroborates and buttresses all Jamal's other claims of prosecutorial misconduct and witness coercion.
VERONICA JONES' NEWLY-AVAILABLE TESTIMONY
On December 9, 1981, at the time of P.O. Faulkner's shooting, Veronica Jones was standing on the northwest corner of Locust and 12th Streets. (Jones Ver. 4.) She heard three shots and looked down Locust Street toward the scene of the shooting. (Id.) She saw a policeman lying down on the ground and saw "two black men first walk and then sort of jog away from where he was lying on the ground." (Id.) Jones approached the scene but then retreated as police arrived. (Id.)
Within a week of the shooting, on December 15, 1981, Philadelphia police interviewed Jones. Jones described what she had seen, including the two men who jogged away from the scene, and the police recorded this in a five-page interview statement. (Id.5; see Exhibit 2 attached).
At trial, the defense called Jones to testify. (Tr. 6/29/82: 94-179.) However, neither Jamal's trial counsel, Anthony Jackson, nor any other defense representative had contacted or interviewed her before she took the stand. (Jones Ver. 5; Tr. 6/29/82: 100-01, 136-37; 7/27/95: 50-51.)
The defense called Jones because, based on her police statement, counsel expected her to testify that "she saw two people jogging away from at or about the scene of the shooting." (Tr. 6/29/82: 93.) Instead, on the stand, Jones repudiated her December 15, 1981 statement to police and repeatedly denied that she had seen two men jog or run from the scene. (Id.: 99, 109,12, 147, 161, 176-77.) [Jones' retraction permitted the Commonwealth to argue that the jury should "completely disregard" her testimony. (Tr. 7/1/82: 152.)
In her new verified statement, Jones explains that her trial testimony was false and that she changed her testimony to Jamal's detriment because police detectives pressured her to do so while she was incarcerated on serious felony charges. Jones was arrested on June 12, 1982 on major felony charges (including robbery, assault, and gun charges, CP 8206-3059), for which she faced a possible 10 to 15 years in prison if convicted. (Jones Ver. 2. See also Exhibit 3 (copy of criminal record).) At that time, jury voir dire was underway in Jamal's trial. (See e.g., Tr. 6/11/82.) Because she could not meet bail on the charges, she was in custody at Philadelphia County jail at the time she testified. (Jones Ver. 2.)
Aged 21 with three small children, Jones was in a position of acute vulnerability. (Id., 2.) She had not yet been contacted directly by Jamal's counsel. (Id. 5.) Jones explains that police detectives visited her in jail just days before her testimony and "frightened me into changing my testimony so as not to help the defense." (Id. 7.) The detectives offered that if Jones would testify that Jamal was the shooter she "wouldn't have to worry about my pending felony charges":
"Approximately one week before I testified I was visited in jail by two white plainclothes detectives. I was initially shocked at seeing them since the jailers had told me my lawyer was visiting. The detectives began by speaking, not of the facts of my case, but of the Jamal case. They told me that if I would testify against Jamal and identify Jamal as the shooter I wouldn't have to worry about my pending felony charges. I repeatedly told the detectives that I didn't see the shooting, but only heard the shots and then saw two men run away. But this didn't satisfy them. The detectives threatened me by reminding me that I faced a long prison sentence -- fifteen years on gun charges -- all the while persisting that I testify to their version of events. Frightened, I told them I wanted my lawyer present. When they finally left I knew that if I did anything to help the Jamal defense I would face years in prison. (Id. 2.)
To further apply pressure and assure that Jones complied with their entreaties, the detectives were standing visibly in the rear of the courtroom when Jones testified. (Id.)
After Jones changed her testimony she was released on bail "and ultimately sentenced to probation on all the outstanding felony charges." (Id. 3.) [This was not the only time that police had urged Jones to testify falsely that Jamal was the shooter. As her testimony at the 1982 trial revealed, she had been arrested in about January 1982 nd taken to the Sixth District, where police officers told her she would be able to work the streets as a prostitute with immunity if she said Jamal was the shooter. Police also told Jones that another prosecution witness, Cynthia White, had been given the same deal. (Tr. 6/29/82: 129, 131-32, 134-36, 139.) However, the trial court precluded further inquiry into Jones' conversations with police. (Id.: 144-45.) (See Amended Petition for Post-Conviction Relief, 48, 78.I.5, 78.II.2, 87 and 93; Brief for Appellant, pp. 44-46.)]
Jamal was not able to present Jones as a witness at his 1995 PCRA hearing because, despite diligent efforts, he had not been able to locate her. Her address was deleted from the December 15, 1981 police interview record which had been provided by the Commonwealth before the 1982 trial. (Exhibit 2.) Over the years, Jones has used several aliases, birth dates and social security numbers, and lived at several addresses, including out of Pennsylvania, where she had an unlisted phone number. (Jones Ver. 8.) [For example, the "rap sheet" reflecting Jones' 1982 arrest record bears the name "Rhonda Harris." (Exhibit 3.)] Despite the efforts of several defense investigators to find Jones since 1993, she was not located. At the PCRA hearing, the court denied Jamal's motion for discovery in its entirety, although that discovery might have assisted in locating this witness. During the pendency of this appeal, after filing his opening brief, Jamal's representatives were finally able to locate Jones, and learned for the first time that less than two weeks before she testified at trial, police had pressured Jones to recent her favorable testimony and instead testify falsely. Jones' testimony is thus newly-obtained favorable evidence in support of Jamal's PCRA claims.
JONES' TESTIMONY IS FAVORABLE AND SUPPORTS JAMAL'S PCRA CLAIMS
Jones' newly-available testimony establishes due process violations in several respects. Standing alone, the fact that law enforcement successfully pressured this central defense eyewitness to change her testimony to Jamal's detriment is a clear due process violation. United States v. Hammond, 598 F.2d 1008, on reh'g, 605 F.2d 862 (5th Cir. 1979) (FBI agent's threats to defense witness constituted "substantial governmental interference" with defense witness's "free and unhampered choice to testify" and therefore violated due process). See also Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979) (habeas relief granted because state concealed witness). Moreover, the fact that police asked Jones to
testify falsely that Jamal was the shooter was itself favorable evidence demonstrating police bad faith and bias in the investigation. Kyles v. Whitley, 115 S. Ct. 1555, 1571-72 (1995). The Commonwealth had a clear duty to disclose this fact to the defense and the failure to do so violated the Brady doctrine. Id. [The police misconduct here is attributable to the prosecution. Kyles v. Whitley, 115 S. Ct. 1555, 1567-68 (1995) (prosecutor has duty to learn of and disclose all favorable evidence known to government, including police). Here it is inconceivable that the detectives who interviewed Jones even as the trial was commencing, were acting without coordination from the District Attorney's office. However, such actual knowledge by the prosecution is not necessary to establish prosecutorial misconduct. Id.
Jones' testimony that two men fled the scene is of critical importance because a cornerstone of the Commonwealth's case is the contention that only two males -- Jamal and his brother William Cook -- were with P.O. Faulkner at the scene where the officer was shot. The Commonwealth has necessarily denied any claim that a third person ran from the scene. For example, in these PCRA proceedings the Commonwealth has taken pains to assert that "the only people present at the shooting scene were the victim; Cook, who moved toward the wall of a building and did nothing; and defendant. No one else was in the area." (Answer to PCRA Petition, p. 5.) (See also Tr. 9/11/95: 72 (Commonwealth closing argument).)
Yet in the immediate aftermath of the shooting, at least five eyewitnesses (Robert Chobert, Veronica Jones, William Singletary, Dessie Hightower, and Deborah Kordansky) told police that they saw a man flee away from the scene.
At the scene, the cabdriver Chobert told an arriving police inspector that the shooter "ran away." (Tr. 6/1/82: 70.) He repeated this observation less than an hour later, telling investigators that the person who shot Faulkner ran "30 steps" east. (See Tr. 6/19/82: 236, mistakenly referring to the distance as 30 feet.) However, during the 1982 trial, Chobert (like Jones) changed his initial accounts and denied that he had seen anyone flee. At the PCRA hearing last summer, Chobert explained for the first time why he changed his account: unknown to the defense, in 1982 the prosecution had offered to help Chobert, who was on probation and had been illegally driving a cab while his license was suspended, to reinstate his license. (Tr. 8/15/95: 3-10, 20.) (See Brief for Appellant, pp. 39-43.) Now Jones' testimony establishes that police used the same improper methods to get her to retract her account of two men running from the scene.
The PCRA testimony also established that police had harassed and intimidated other eyewitnesses who saw the fleeing man. [Although the trial court sought to dismiss the evidence of widespread police misconduct as implausible (FOF 269), recent revelations lead no room for doubt that such misconduct is pervasive in the Philadelphia police department. E.g., "From prison, ex-cops call offenses routine; Perjuring and fabricating evidence are everyday weapons in the war on drugs, they contend," Philadelphia Inquirer, May 12, 1996, p. 1.] One eyewitness, William Singletary -- whom police witnesses confirm was at the scene during the shooting and was interviewed by police immediately afterward -- testified that the shooter fled the scene and that jamal was not the shooter. However, according to Singletary, police destroyed his witness statements, forcing him to sign a false statement that he did not see the shooting. (Tr. 8/11/95: 209-12, 234-37, 298-99, 301-02.) (See Brief for Appellant, pp. 49-53.) Dessie Hightower, who had heard shots and seen a black male run from the scene, testified that police subjected him to a grueling five hour interrogation and then a polygraph test because of his running man account. (Tr. 6/28/82: 125-27; Tr. 8/3/95: 19, 23-24, 89, 92-93, 99, 103-04.) (See Brief for Appellant, pp. 46-49.) [At trial Homicide detective William Thomas attempted to discredit the running man evidence by claiming that Hightower had actually seen Veronica Jones, and vice versa. (Tr. 6/29/82: 88.) In view of the fact that police detectives were pressuring Jones to change her very testimony, Thomas' effort to discount that testimony appears as nothing more than a calculated attempt to mislead the jury.] Deborah Kordansky similarly told police at the scene that she saw a man running on Locust Street just after hearing shots. (Tr. 8/3/95: 238, 247, 252, 255.) Yet the defense could not call Kordansky because the Commonwealth withheld her address before trial. (Tr. 6/30/82: 3- 6, 98; 7/31/95: 107-09.) (See Brief for Appellant, pp. 53-55.)
Moreover, Jones' testimony that detectives pressured her to identify Jamal as the shooter could have led the jury to conclude that police used similar improper methods to obtain Cynthia White's identification testimony. White was the only witness who claimed to have seen Jamal, gun in hand, shoot P.O. Faulkner. (Tr. 6/21/82: 4.104, 4.114-15.) Yet no other witness saw White on the street corner where she claimed to have viewed the shooting. (Tr. 6/19/82: 227-28 (Chobert); 6/29/82: 129-30 (Jones); 8/11/95: 300-01 (Singletary).) Moreover, White was arrested for prostitution and interviewed by police repeatedly in the weeks after the shooting. (Tr. 6/21/82: 4.169-71; 6/22/82: 5.20-32.) At the time of trial she had been incarcerated in Massachusetts and was under police arrest and guard at a Philadelphia hotel. (Tr. 6/21/82: 4.79-80, 4.84-86.) White was thus susceptible to the very kind of intimidation which police brought to bear on Jones. (See Brief for Appellant, pp. 44-46)
Thus not only does Jones' testimony establish due process claims in its own right, but it also corroborates and buttresses Jamal's many other claims of prosecutorial misconduct and witness coercion. These many instances of misconduct must be considered in light of their cumulative effect. Kyles, 115 S. Ct. at 1567 (suppressed evidence claims should be addressed "collectively, not item-by-item").
In addition to the police/prosecutorial misconduct claims, Jones' testimony also supports Jamal's claim that the court improperly precluded her testimony regarding conversations with police, and that Jamal's 1982 trial counsel was ineffective for failing to locate or interview Jones before she testified. (See Brief for Appellant, pp. 44-46 and 74.) Had trial counsel talked to Jones, or had the court permitted her to testify about her police interviews, she might have disclosed that police had visited her in jail and pressured her to change her story just days before she took the stand. Instead, because of counsel's dereliction and the court's improper limitation on her testimony, the jury never learned this critical fact. Chambers v. Mississippi, 410 U.S. 284 (1973) (court's preclusion of testimony regarding promises and threats of police violates defendant's due process right to present a defense); Com. v. Perry, 644 A.2d 705, 709 (Pa. 1994) (counsel's failure to talk with defense witness is "arguably per se" ineffectiveness).
Finally, Jones' account of police misconduct amounting to spoliation of her testimony is yet another reason why Jamal should be permitted discovery on all his Brady claims. The court below should reconsider its wholesale denial of PCRA discovery in light of her testimony. (See Brief for Appellant, pp. 28-29.)
THIS MATTER SHOULD BE REMANDED TO PERMIT THE TRIAL COURT TO HEAR JONES' TESTIMONY AND FOR FURTHER PROCEEDINGS IN LIGHT OF THE NEW TESTIMONY.
Under these circumstances, the Court should remand the matter to the trial court to permit Jamal to present the additional testimony of Jones. In re: Laying Out and Opening Private Road, 405 Pa. Super. 298, 592 A.2d 343 (1991) (application for remand to conduct hearing on newly-raised evidentiary issues); Com. v. Richards, 317 Pa. Super. 212, 463 A.2d 1161 (1983) (direct appeal remanded so trial court could take new evidence when defendant raised ineffective assistance claims going beyond the record); Com. v. Taggart, 258 Pa. Super. 210, 392 A.2d 758 (1978) (same). This will permit the court below and this Court to consider the issues collectively and efficiently, and to conserve judicial resources. A remand to permit the taking of Jones' testimony is all the more appropriate because this is a capital case in which the Court should give the "condemned man the benefit of every possible doubt." Com. v. Travaglia, 661 A.2d 352, 367 (1995), cert. den'd, 116 S. Ct. 931 (1996).
On remand, the court below should permit such additional proceedings as may be appropriate in light of her testimony, and the trial court should reconsider all its findings, conclusions and adjudication, as well as its other rulings (such as denial of discovery), in light of the new evidence. For the reasons set forth in the Brief for Appellant (pp. 18-28), Jamal requests that on remand this Court should direct that the matter be assigned to a different judge.
Should the court below then deny Jamal's claim for post-conviction relief, this Court may then consider Jamal's appeal with new briefing, or based on the briefs submitted herein and such further briefing as the Court may order.
CONCLUSION
For all the foregoing reasons, an Order should be entered granting the following relief: (a) remanding this cause to the Court of Common Pleas for the purpose of taking additional testimony and for such other proceedings as may be just and equitable in light of the additional testimony; (b) directing the trial court to reconsider its rulings, findings, conclusions and adjudication as appropriate in light of the additional testimony; and (c) granting such other and further relief as this Court may deem just and equitable under the circumstances.
Respectfully submitted,
LEONARD I. WEINGLASS
New York, NY
(212) 807-8646
DANIEL R. WILLIAMS
Moore & Williams, LLP
New York, NY
(212) 353-9587
JONATHAN B. PIPER
Sonnenschein, Nath & Rosenthal
Chicago, IL
(312) 876-8000
RACHEL H. WOLKENSTEIN
New York, NY
(212) 406-4252
STEVEN W. HAWKINS
National Conference of Black Lawyers
Washington, DC
(202) 347-2411
DAVID RUDOVSKY
Kairys, Rudovsky, Kalman & Epstein
Philadelphia, PA
(215) 925-4400
Attorneys for Petitioner Mumia Abu-Jamal
Dated: May 22, 1996
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